Ruth "Swing Vote" Ginsburg?:
This morning the Supreme Court handed down Ali v. Federal Bureau of Prisons, a Federal Tort Claims Act case on the scope of the FTCA's immunity waiver in the context of lawsuits against federal prison officials. I hope to blog more on it later today, but for now the vote line-up itself is interesting to note. The Court split 5-4, with Justice Thomas authoring the majority opinion joined by Scalia, Roberts, Alito, and Ginsburg. Justice Kennedy wrote the main dissent, joined by Stevens, Souter, and Breyer.

Ali v. Federal Bureau of Prisons:
Today's decision in Ali v. Federal Bureau of Prisons is a pretty interesting statutory interpretation case. The case involves 28 U.S.C. 2680, which limits the Federal Tort Claims Act's waiver of soverign immunity in a range of situations. The statute lists 13 such situations, and one of them is the one implicated in today's case. It exempts from the waiver

[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer, except that the provisions of this chapter and section 1346 (b) of this title apply to any claim based on injury or loss of goods, merchandise, or other property, while in the possession of any officer of customs or excise or any other law enforcement officer, if—
(1) the property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property other than as a sentence imposed upon conviction of a criminal offense;
(2) the interest of the claimant was not forfeited;
(3) the interest of the claimant was not remitted or mitigated (if the property was subject to forfeiture); and
(4) the claimant was not convicted of a crime for which the interest of the claimant in the property was subject to forfeiture under a Federal criminal forfeiture law.

The question in the case is whether the reference to "any other law enforcement officer" is implicitly limited to other law enforcement officers acting in the assessment or collection of a tax or customs duty, or whether it means any other law enforcement officer acting generally. Justice Thomas argues the latter; Justice Kennedy argues the former.

Based on a quick skim, I'm not sure which side is more persuasive. On one hand, Justice Thomas is right that the statute on its face says that it applies to detention by "any law other law enforcement officer," a very broad phrase. On the other hand, Justice Kennedy is right that this would be a relatively weird way to make the point that all detentions by law enforcement officers are excluded. Based on a very quick read, it seems like a coin toss as to which side is more persuasive -- or at least a matter requiring a lot more study of the statutory scheme than a casual read would allow.

Reading over the opinions, I'm a little surprised that the litigants and the Justices apparently thought it obvious that prison officials count as "law enforcement officers." In my experience, prison officials are not generally considered to be "law enforcement" officers, as their role is running prisons rather than enforcing the law through the investigation and prosecution of criminal activity. But maybe it's clear in the statutory scheme that prison officials are law enforcement officers -- I don't know enough about the FTCA to say.

Finally, I thought the beginning of Justice Kennedy's dissent was a bit overdone. I don't see anything in Justice Thomas's opinion that suggests that the Court has now adopted "an analytic framework" of statutory interpretation that "become[s] binding on the federal courts." Rather, this case struck me as just a relatively common interpretive exercise trying to make sense of a rather awkwardly written statute.